State v. ConnellState v. Connell
Defendant appeals his sentence. He and a co-defendant were hired to kill a witness in a federal investigation. As defendant drove past the witness‘s house, his accomplice fired a handgun into the witness‘s automobile. The witness and his son had just entered the car and were about to drive to work. Both victims survived the shooting but they were seriously wounded. Defendant has an extensive criminal record, including a conviction of assault with a revolver.
Pursuant to a plea agreement, the trial judge imposed concurrent Graves Act mandatory extended prison sentences of 15 years with a minimum term of 5 years for each of four second-degree crimes: conspiracy to commit murder (
Defendant argues that (1) three of the extended prison sentences are illegal because
Extended prison terms serve two different functions in the Code. They offer the sentencing judge an option, which he may take on request of the prosecuting attorney, to impose a longer prison sentence than is ordinarily available. When performing this function, an extended prison term may be imposed in the exercise of sound judicial discretion where the defendant is a persistent offender, a professional criminal or a party to a crime committed for hire.
Extended prison terms also serve as the mandatory sentence for a defendant who has committed any of the crimes enumerated in
These two distinct functions of extended prison terms are explicitly stated in the Code.
A person who has been convicted of [one of the Graves Act crimes] and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm ... shall be sentenced by the court to an extended term ... notwithstanding that extended terms are ordinarily discretionary with the court.
When multiple Graves Act prison sentences are imposed on a second Graves Act offender, the sentence for each Graves Act crime must lie within the extended prison sentence range.
Defendant relies on
When multiple sentences of imprisonment are imposed on a defendant for more than one offense ... [n]ot more than one sentence for an extended term shall be imposed.
That provision limits the judge‘s authority to impose discretionary extended prison terms, not Graves Act mandatory extended prison terms. Graves Act extended prison terms are mandatory
Defendant‘s second point is more difficult. In a departure from pre-Code law,
may not, however, be convicted of more than one offense if ... [o]ne offense consists only of a conspiracy or other form of preparation to commit the other;
A conspiracy to commit murder is not a conspiracy to commit aggravated assault. See State v. Hardison, 99 N.J. 379, 386-387 (1985).
Yet in some cases it would be unfair, illogical and anomalous for a defendant to be convicted of two crimes instead of one solely because, by chance, the substantive crime he committed is less serious than the one that he had conspired to commit against the same person. This would occur when a defendant‘s sentencing exposure is greater for both the conspiracy and the substantive crime if the crimes do not merge than it would have been had he committed the more serious substantive crime that was the object of the conspiracy and the crimes merged.
An example readily demonstrates the anomaly. The general rule is that “conspiracy is a crime of the same degree as the most serious crime which is the object of the conspiracy....”
The Code avoids such unfair treatment of a less culpable defendant through merger under
may not, however, be convicted of more than one offense if ... [o]ne offense is included in the other, as defined in subsection d. of this section;
Subsection d. provides:
A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
The questions in the present case, then, are whether aggravated assault is included in conspiracy to murder the person assaulted and whether conspiracy to commit murder is included in aggravated assault upon the person the defendant had conspired to murder.
We first eliminate subsection (d)(1) because the key fact required to establish conspiracy to commit murder is different from, not “the same or less than,” the facts required to establish aggravated assault. Although under the Code an element of conspiracy is no longer an “agreement” as defined at common law,
Subsection (d)(3) applies. Application of that subsection requires weighing the offenses either in terms of injury or risk of injury to the same person or in terms of the kind of culpability that suffices to establish the offenses. It may be that a particular aggravated assault posed a more or “less serious ... risk of injury” than conspiracy to murder the same person, or that conspiracy to murder is in some sense a more or “less serious injury” than a particular aggravated assault of the same person. Generally, however, a weighing of aggravated assault against conspiracy to murder the same person can more suitably be done on an adaptable scale that measures the “kind of culpability” that “suffices to establish” each crime.
The premise for using the same scale of culpability to weigh the crimes of aggravated assault and conspiracy to murder the person assaulted is derived from the holding in State v. Zelichowski, 52 N.J. 377 (1968), a pre-Code case. The Court there held that atrocious assault was included in murder. The defendant was charged with murder. There was evidence that he had atrociously assaulted the victim and left him lying helplessly on the ground. Other evidence suggested, however, that the victim died from a subsequent assault by someone else before his body was found. The Court held that
where the State‘s thesis is willful murder, atrocious assault and battery is encompassed, i.e., it is a lesser included offense. Thus, the question of
atrocious assault and battery is properly left to the jury where, as here, under the evidence a reasonable doubt might exist as to whether the acts for which the defendant is sought to be held criminally responsible proximately caused the death of the victim. [Zelichowski, 52 N.J. at 384]
Aggravated assault of a person has been held to merge with attempted murder of the same person. See State v. Lavender, 68 Or. App. 514, 682 P.2d 823 (Ct.App. 1984), review den. 297 Or. 547, 685 P.2d 998 (1984); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281, 1286-1287 (Pa.Super. 1983) and People v. Dixon, 36 Ill. App.3d 247, 343 N.E.2d 583, 589 (App.Ct. 1976). For the purpose of merger, there is little difference between the “kind of culpability” that establishes an “attempt” and the kind that establishes a “conspiracy” to commit the same crime. Both are “inchoate crimes” under Chapter 5 of the Code and the Code generally grades them the same way.
The grading provisions of the Code ordinarily offer the appropriate measure of culpability to determine which offense survives merger when weighing culpability under
The general rule cannot automatically be applied here for two reasons. Because of the statutory exception in grading conspiracies to commit first-degree crimes,
A Graves Act aggravated assault, however, cannot be merged into the non-Graves Act conspiracy and then be forgotten. The Legislature did not intend to eliminate mandatory Graves Act sentences through merger. When faced with a similar problem with respect to plea agreements, our Supreme Court directed that, in the absence of other factors not relevant here, a Graves Act crime cannot be dismissed under a plea agreement unless the prison sentence for committing the non-Graves Act crime is “at least equal in length to that which would have been required for the [Graves Act] offense being dismissed.”
We therefore conclude that when a Graves Act crime merges with a non-Graves Act crime, the sentence must be at least equal in length to the mandatory sentence required for the Graves Act crime. If the sentencing guidelines for the non-Graves Act crime do not permit that long a sentence, the Graves Act crime survives the merger. From his record as a persistent offender and from the fact that he committed the present crimes for hire, defendant in this case could have received an extended prison sentence for the conspiracy that would be at least as long as the mandatory Graves Act sentence
In sum, when imposing prison sentences for more than one offense a judge must impose a Graves Act sentence, including mandatory extended prison terms, for each Graves Act conviction. When a defendant only assaults the victim that he had conspired to murder, the assault generally merges into the conspiracy conviction. However, if the assault constituted a Graves Act crime, the sentence imposed must be no less than the mandatory Graves Act sentence. If the sentencing guidelines for the non-Graves Act crime do not authorize imposition of a sentence at least as long as the mandatory Graves Act sentence, the non-Graves Act crime merges and the defendant must be sentenced for the Graves Act crime.
Applying the foregoing principles here, the aggravated assault of the father merges with the conspiracy to murder him. Because the aggravated assault of the father requires a mandatory extended prison term, the trial judge properly imposed the extended prison term for the conspiracy. Thus, we vacate only the sentence for the aggravated assault of the father. The other three convictions are affirmed.